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The Misplaced Furor Over the Feeney Amendment As a Threat to Judicial Independence

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The Misplaced Furor Over the Feeney Amendment As a Threat to Judicial Independence William & Mary Law Review Volume 46 (2004-2005) Issue 2 Article 6 November 2004 Barking Up the Wrong Tree: The Misplaced Furor Over the Feeney Amendment as a Threat to Judicial Independence David P. Mason Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Criminal Procedure Commons Repository Citation David P. Mason, Barking Up the Wrong Tree: The Misplaced Furor Over the Feeney Amendment as a Threat to Judicial Independence, 46 Wm. & Mary L. Rev. 731 (2004), https://scholarship.law.wm.edu/wmlr/vol46/iss2/6 Copyright c 2004 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr NOTES BARKING UP THE WRONG TREE: THE MISPLACED FUROR OVER THE FEENEY AMENDMENT AS A THREAT TO JUDICIAL INDEPENDENCE INTRODUCTION ..................................... 733 I. OUTLINE OF THE CONTROVERSY ........................735 A. What Is the Feeney Amendment? .................. 735 B. Implementation of the Feeney Amendment ........... 738 1. The Departmentof Justice ...................... 739 2. The U.S. Sentencing Commission ................ 741 3. The FederalCourts of Appeals .................. 744 C. Response to and Criticism of the Feeney Amendment .. 746 1. CongressionalSupport and Critiques ............. 746 2. Public Critiques: The Press,Academia, and Public Interest Groups ......................... 748 3. FederalJudiciary Response ..................... 752 4. Summary of the Critiquesand the Argument that the Feeney Amendment Is an Attack on Judicial Independence ................................ 756 II. DEFINING JUDICIAL INDEPENDENCE ................... 757 III. THE OVERSTATED THREAT TO JUDICIAL INDEPENDENCE .. 762 A. JudicialIndependence Is Not a Talisman: The Role of Accountability to the Law and Inter-Branch Interdependence ................................ 763 1. JudicialAccountability as Accountability to the Law and the Argument Against Judicial "Policymaking"................................ 764 2. ConstitutionalAccountability: The Accountability of the Federal Judiciaryto the Political 732 WILLIAM AND MARY LAW REVIEW [Vol. 46:731 Branches ................................. 765 B. The Feeney Amendment as an Appropriate Act of Legislative Policy .......................... 770 C. This Legitimate Legislative Act of Sentencing Reform Does Not Destroy JudicialIndependence ...... 773 1. The Difference Between Discretion and Independence ............................ 775 2. Fearsof a "JudicialBlacklist" as a Threat to JudicialIndependence Are Overstated ............ 777 CONCLUSION ....................................... 781 AUTHOR'S NOTE .................................... 782 20041 BARKING UP THE WRONG TREE 733 INTRODUCTION On April 30, 2003, President Bush signed into law the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, also known as the PROTECT Act.' Generally lauded by many supporters and opponents of the "Feeney Amendment" alike, the PROTECT Act works to nationalize the AMBER Alert system,2 combat child abduction, and increase penalties for sexual crimes and pornography involving children. One amendment to the bill-the so-called "Feeney Amendment"-- however, has created a firestorm of controversy in the wake of the bill's passage. The Feeney Amendment purports to make major changes in the process of criminal sentencing under the U.S. Sentencing Guidelines. Included as "Section IV: Sentencing Reform" of the PROTECT Act, the Feeney Amendment attempts to reduce substantially the practice of "downward departures" from the Sentencing Guidelines, a practice by which a judge sentences a defendant below the prescribed penalties for various crimes.3 Many critics of the Feeney Amendment have labeled it an attack on judicial independence because it limits criminal sentencing discretion of federal Article III judges and requires reports on the departure practices of judges. Vocal criticism has emanated from various quarters: academia, the federal judiciary, the media, and legislators.' This Note argues that the general tone of the criticism and the repeated references to it as an "attack on judicial independ- ence" are not warranted, Most of the critics' assertions about protection of judicial independence-although cloaked in arguments about the separation 1. PROTECTAct, Pub. L. No. 108-21,117 Stat. 650 (2003) (codifiedin scattered sections of 18, 28, 42, and 47 U.S.C.); Statement of President George W. Bush upon Signing S. 151, 39 WEEKLY COMP. PREs. Doc. 502-04 (Apr. 30, 2003). 2. The AMBER Alert system is an early warning system designed to help find abducted children. Code Amber Foundation, About the AMBER Alert Program, available at http'J/www.codeamberfoundation.org (last visited June 4, 2004). 3. See Part L.A for a description of the most controversial changes that the Feeney Amendment makes to the guidelines sentencing system. Critics describe these changes as an attack on judicial independence. 4. See infra Part I.C. 734 WILLIAM AND MARY LAW REVIEW [Vol. 46:731 of powers and usurpation of judicial discretion-are, in fact, policy arguments against the Sentencing Guidelines themselves.5 Moreover, many critics-including federal judges-use the rubric of judicial independence to criticize the working of the Sentencing Guidelines as too harsh and rigid. These critics decry the removal of district judges' access to downward departures to "remedy" the wrongs of the Sentencing Guidelines system. This Note argues neither that, as a normative issue, current sentencing policy is appropriate, nor that the Feeney Amendment and the diminished discretion of judges to engage in downward departures were, as a matter of policy, correct. Instead, this Note advances the argument that these policy criticisms are not appropriately tied to the concept of judicial independence. Judicial independence is undoubtedly an extremely important tenet of our constitutional system, but it is not a talisman. Rather, it is a limited concept that does not avoid the precept that the federal judiciary is still subject to the will of Congress in various ways-including the making of policy on criminal sentencing. In Part I, this Note describes the most controversial aspects of the Feeney Amendment, those most often cited in critiques of the amendment, and their implementation up to this point. In addition, this Part outlines some of the main arguments against and in support of the amendment. Part II examines varying definitions of judicial independence and provides a standard by which to measure this amendment as a purported infringement of judicial independ- 5. This Note does not purport to provide an extensive separation of powers justification for the Sentencing Guidelines system itself but assumes that the U.S. Supreme Court already answered this question in Mistretta v. United States. 488 U.S. 361, 412 (1989) (holding by an eight-to-one majority that Congress did not violate the separation of powers doctrine by creating the U.S. Sentencing Guidelines and U.S. Sentencing Commission). Although critics of the Feeney Amendment are often critics of the Sentencing Guidelines system as a whole, this Note attempts to answer only those arguments that criticize the Feeney Amendment as an attack on judicial independence. In response to criticisms of the Feeney Amendment as a separation of powers violation, at least one federal court has held that the PROTECT Act alterations to the guidelines system do not alter the system sanctioned in Mistretta to such an extent that it would violate the separation of powers. See United States v. Schnepper, 302 F. Supp. 2d 1170, 1198-1200 (D. Haw. 2004). But see United States v. Mendoza, No. 03-CR-730-ALL, 2004 WL 1191118, *6-7 (C.D. Cal. Jan. 12, 2004) (holding that all portions of the Feeney Amendment were constitutional, with the exception ofDOJ reporting on individual judges' sentencing practices, which the court held violated the separation of powers). 20041 BARKING UP THE WRONG TREE 735 ence. Part III analyzes why much of the contemporary criticism of the amendment as an attack on judicial independence is misplaced, as the amendment is properly within Congress's legislative power, does not have the actual effects its critics purport it has, and leaves intact the key safeguards of judicial independence. Finally, this Note concludes that, although there may be other criticisms that could be lodged against the Feeney Amendment as a matter of policy, the most popular critique-that it is an attack on judicial independence-is unsupported by the historical and current understanding of that concept. I. OUTLINE OF THE CONTROVERSY A. What Is the Feeney Amendment? The Feeney Amendment6 enacts significant legislative changes to the Sentencing Guidelines system, established by the Sentencing Reform Act of 1984, in the area of departure authority-the ability of sentencing courts to sentence outside of the prescribed guidelines range-and in the appellate review of sentencing court departure decisions.' The most controversial reforms to the sentencing system include broad directives to the U.S. Sentencing Commission, the Department of Justice (DOJ), and the federal judiciary related to the use of departures in general.' These reforms have the broadest impact on sentencing and are most often cited in critiques of the Feeney Amendment as an encroachment on judicial independence. The substance of these reforms is briefly described below. The first of these changes is the alteration of the appellate
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